If a physician gives a person a potion without any intent of doing him
any bodily hurt, but with an intent to cure or prevent a disease, and
contrary to the expectation of the physician it kills him, this is no
(culpable) homicide, and the like of a chirurgeon; _1 Hale_, _P. C._
429; _4 Bl. Comm._ 197. But query if he were not a regular physician or
surgeon? on this there appears to be some difference of opinion; it was
anciently holden that if one, that is not of the mystery of a physician
or surgeon, take upon him the cure of a man, and he dieth of the potion
or medicine, this is covert felony. _Si un que nest physition ou surgeon
emprent sur luy un cure, que murrust in sa main, que cest felonie_;
_Stanford’s Pleas of the Crown_, _cap._ 9; _Fitzherbert_, _tit. coron._
_p._ 311; _Briton_, _fol._ 14; _Lombard_, _Eiren. tit. Felonie_ saith
thus; that _Thorpe_, _43 Ed. 3_, 33, saith he knew one to be indicted
accordingly. _Dalton_, _p._ 470, queries this case, as it is difficult
to determine the actual cause of death, and there appeareth no will to
do harm, but rather to do good, and “the _34 Hen. 8_, _c._ 8, leaveth so
great a liberty of such practice to unskilful persons, that it will be
hard now to make it felony.” Now the statute of _Henry the eighth_
applies only to the cure of certain diseases or sores, particularly
specified, and others like to the same, by external applications, and to
drinks for the stone, strangury, or agues, provided (if the preamble may
be relied on) “the said persons have not taken any thing for their pains
or cunning, but have ministered the same to the poor people only, for
neighbourhood, and God’s sake, and of pity, and charity;” in such sense
the act is reasonable even to this day, much more then, when from the
scarcity of regular practitioners, the charitable in the country were
frequently called upon to administer on emergencies, where no medical
aid could be procured; but surely this act can never have been intended
to warrant the administration of dangerous medicines, arsenic, corrosive
sublimate, or cantharides, such indeed as may be fairly classed as
absolute poisons, except when in skilful hands, nor the performance of
surgical operations. _Dalton_ indeed adds “But if a smith or other
person (having skill only in dressing or curing the diseases of horses
or other cattle) shall take upon him the cutting, or letting blood, or
such like cure of a man, who dieth thereof, this seemeth to be felony;
for the rule is, _quod quisque norit, in hoc se (non) exerceat_.” And if
it were otherwise, great evils might arise; for persons intending to
commit murders, need only cover their design by a pretence of
administering medicine;[507] thus in _Vaux’s_ case, the professed
purpose of administering the cantharides, was not illegal, yet the
prisoner was found guilty of murder. In _Donellan’s_ case, what would a
plea have availed, that the chemical principle of laurel water was, in
the prisoner’s opinion, a cure for consumption, with which _Sir
Theodosius Boughton_ was threatened, and that it had been administered
to cure, and not to kill him; or on the death of _Mr. Scawen_,[508] that
his mistress had infused or dissolved corrosive sublimate in all his
drinks and medicines, to cure him of an ulcer, with which he was
afflicted; and that she had done it secretly, because he had an avowed
aversion to mercurial medicines. Yet such pleas would continually be
made, if the doctrine of allowing all persons however ignorant and
unqualified to tamper with medicines, should be admitted. On the other
hand there is very considerable weight of authority; _Sir. Wm.
Blackstone_ follows _Sir Mathew Hale_ in his opinion, that this
doctrine, that if any die under the hand of an unlicenced physician it
is felony, is apocryphal, and fitted to gratify and flatter doctors and
licentiates in physic; though it may have its use to make people
cautious, and wary, how they take upon themselves too much in this
dangerous employment; _1 Hales_, _P. C._ 429, 430; _4 Bl. Com._ _c._ 14,
_p._ 197; it is difficult to imagine how caution is to be enforced by
taking away the liability to punishment. Mr. Serjeant _Hawkins_ takes a
different ground; “Also it hath been anciently holden, that if a person,
not duly authorised to be a physician or surgeon, undertake a cure and
the patient die under his hand, he is guilty of felony;” but inasmuch as
the books wherein this opinion is holden (_Stamford_, _P. C._ 16;
_Pulton_, 22; _Crom._ 27; _43 Ed. 3_, 33; _Fitz H. Cor._ 163; _Britt._
_c._ 5; and _4 Inst._ 251) were written before the statutes of _23 Hen.
8_, which first excluded such felonious killing, as may be called wilful
murder of malice prepense, from the benefit of clergy, it may be well
questioned whether such killing shall be said to be of malice prepense
within the intent of that statute; however it is certainly highly rash
and presumptuous for unskilful persons to undertake matters of this
nature; “_and indeed the law cannot be too severe in this case_, in
order to deter ignorant people from endeavouring _to get a livelihood_
by such practice, which cannot be followed without the manifest hazard
of the lives of those who have to do with them;” _1 Hawk. P. C._ 131.
This doctrine does not by any means go as far as _Sir Mathew Hale_; for
as the supposed alteration of the law is referred to the operation of
the statute, which takes away the benefit of clergy from murders, that
is to say from felonious killing with malice prepense, it does not apply
to manslaughter, to which the benefit of clergy was still allowed. But
there yet remains a question, whether in the case of a person illegally
taking upon himself the administration of dangerous medicines, for
profit, (and it must be observed that the greater number of nostrums
are, from the powerful nature of their ingredients, highly dangerous)
does not subject himself to a charge of murder if any die under his
hands; for “if a man does such an act, of which the probable consequence
may be, and eventually is, death, such killing may be murder, although
no stroke is struck;” _4 Bl. Com._ 197. What then if a man for profit
administer dangerous preparations of mercury to persons necessarily
exposed to change of temperature, and inclemency of weather; nay,
delusively hold out to them, that no mercury is employed, by which they
are induced to neglect the most ordinary precautions; if death ensue is
not this equally murder, _in foro conscientiæ_, as killing with the
sword? Malice may be implied in law, as well as apparent; it may be
general, as well as particular; and whenever a man has evinced, whether
from avarice, cruelty, or wantonness, such disregard for the lives and
safeties of mankind, as warrants the imputation of general malice, it is
not necessary that individual malice be proved towards the party who has
become his victim.[509] _1 Easts. P. C._ 231. “So too if a man hath a
beast that is used to do mischief, and he knowing it, suffers it to go
abroad, and it kills a man, even this is manslaughter in the owner: but
if he had purposely _turned it loose_, though barely to frighten people,
and make what is called sport, it is with us (as in the Jewish law) as
much murder as if he had incited a bear or dog to worry them;” _4 Bl.
Com._ 197. And _Hale_ says, _1 P. C._ 431, I have heard that the owner
was hanged for it. Is there much difference, whether the mischief be
done by a dangerous beast, or a poisonous drug? to us it appears that
the man who vends or administers the one, is as guilty as he who is
convicted of turning out the other. If _A_ give purging comfits to _B_
to make sport and not to hurt him, and _B_ dies thereof, it is a killing
by _A_, but not murder, but manslaughter; 1, _II. P. C._ 431; _Dalt._
_cap._ 93. Here _A_ is not supposed cognisant of the dangerous nature of
the comfits.
With every deference therefore to the very high authorities, which have
supported a contrary opinion, we cannot but conclude, that the unlawful
administration of medicine for profit, by which death ensues, may
constitute wilful murder in some cases, manslaughter in most, and a high
misdemeanor in all, according to the quantity of general malice,
ignorance, and presumption, evidenced in each case; under what class
each individual instance may fall, is a proper subject for a jury. If
the law be defective on this point it cannot be too soon amended, and we
must express our sanguine hope, that the consideration of revenue, as
arising from the stamp duties on patent medicines, will not be allowed
to influence the legislature in a matter vitally important to the public
health, and to the lives of his majesty’s subjects, more especially as
the evil principally operates on the class, whose personal vigour
constitutes the strength and sinews of the country. And yet in candour
we must admit the difficulties and embarrassments with which the subject
is beset: the multiplication of restraints in a free country is very
naturally regarded with extreme jealousy, and however anxiously we may
desire to crush those harpies of society, who scatter poison and death
around, under the pretence of affording relief, yet the object must not
be purchased by the infringement of civil liberty.
Doctor _Goodall_, in his historical account of the college’s proceedings
against empiricks, published in 1684, mentions many cases in which death
has ensued from unlawful administration of medicine; in some of these
cases, the college punished the offenders according to their
jurisdiction; some by fine and imprisonment, for mala praxis; others
they sued at law, for the penalty of five pounds per month for
unlicensed practice. But in those instances which appeared to require
greater severity of punishment, they consigned the accused to the
ordinary course of justice. See _Humphrey Beven’s_ case, _Goodall’s
Pro._ 425—_John Hope’s_ case, for giving two apples of coloquintida to a
man as a purge, of which he died. _Ibid._ 441.